Assessing the government's proposed reforms to appealing from the Upper Tribunal

The government has recently consulted on proposals to reform the test for permission to appeal from the Upper Tribunal to the Court of Appeal. The consultation period ended on 11 January and the government is now analysing respondents’ feedback.

The proposals have the stated aim of “improving the efficiency of the unified tribunal system”. One proposal is that, in the case of appeals against a decision of the Upper Tribunal which has itself heard an appeal from the First-tier Tribunal, if the Upper Tribunal refuses permission to appeal to the Court of Appeal, the Court of Appeal may grant such permission only “for reasons of exceptional public interest”.

Presently, both the Upper Tribunal and the Court of Appeal apply the same test in this scenario, which is whether the appeal raises an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.

The government has also made proposals relating to applications for permission to bring claims for judicial review against public bodies and permission to appeal to the Court of Session in Scotland.

The intended effect of the proposed measures is to reduce the number of applications reaching the Court of Appeal. The government understands that the Court of Appeal is under strain from its current caseload, principally cases originating from the Upper Tribunal’s Immigration and Asylum Chamber, which is leading to increased delays for all court users. However, the proposals are not limited to appeals from the Upper Tribunal’s Immigration and Asylum Chamber and cover appeals from all Chambers.

While alleviating the burden on the Court of Appeal is undoubtedly valuable, the consequences of the measures chosen for this purpose must be carefully considered. 

Appeals that raise novel or important points of law must continue to find their way to the senior courts. This need is particularly pressing in tax cases, where the courts and tribunals are regularly grappling with complex and evolving rules that concern not only the immediate parties but also the general body of taxpayers, who look to decisions of the senior courts for guidance.

As a safeguard, the government has proposed that if the Upper Tribunal is uncertain whether to grant or refuse permission, it may refer the application to the Court of Appeal, which will apply the current test. However, there is a risk that this power could be used too sparingly (and more applications will have to meet the “exceptional public interest” test) or too frequently (thereby failing to lighten the Court of Appeal’s caseload).

Macfarlanes LLP submitted a response to the consultation, which focused on the proposed “exceptional public interest” test. For more information, please do get in touch.